['Recruiting and hiring']
['Negligent Hiring / Retention']
06/14/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Utah, an employer/former employer may disclose to a prospective employer, upon request of the prospective employer, information about employee/former employee job performance, conduct, or evaluation, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses knowingly false information or intentionally misleading information or discloses the information with reckless disregard.
A school or school district must disclose to the Utah State Office of Education’s administrator of teacher licensing, information possessed and any recommendation the school or district has on a person, for teaching employment or teacher licensing purposes. However, a school or school district is free of liability relating to the disclosure, only if the information is provided in good faith.
Maliciously interfering in order to keep a person from obtaining or enjoying employment is not allowed. Blacklisting a discharged or resigned employee in order to prevent the employee from obtaining or keeping employment is also not allowed. Exchanging blacklists is prohibited.
Arrest record inquiries
In Utah, an employer may not ask about arrest records. This differs from the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Utah, an employer may only ask about felony convictions, but then only if they are related to the job. This differs somewhat from the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Utah Anti-Discrimination & Labor Division
Utah Commission on Criminal and Juvenile Justice
Conviction record inquiries
Utah Anti-Discrimination & Labor Division
Regulations
Employer immunity from disclosure claims
Utah Code 34-42-1, Employer references – civil liability – rebuttable presumption – common law
Utah Code 53A-6-402, Evaluation information on current or prospective school employees - Notice to employee - Exemption from liability
Utah Constitution Article XII, Section 19, Blacklisting forbidden
Arrest record inquiries
Utah Code 77-40-104, Petition—Expungement of records of arrest, investigation, and detention—Eligibility condition—No filing fee
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.